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Tort Law: The Duty of care, Breach of duty and Causation - Cases and summary.
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A In-depth explanation on the key elements of negligence with cases applicable for scenario questions and essays.
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DUTY OF CARE● Negligence starts with Blyth v Birmingham Waterworks (1856), Baron Alderson stated:
"Negligence is the omission to do something, which a reasonable man, guided upon those
considerations, which ordinarily regulate the conduct of human affairs, would do, or doing
something, which a prudent and reasonable man would not do."
● Duty of care refers to the relationship which the law recognises as giving rise to duty to take
care.
● The defendant will be liable to pay damages to the party who is injured or suffers loss as a
result of the breach of duty.
"Who then, in law, is my neighbour" - Lord Atkin (1932)
★ Donoghue v Stevenson (1932): Mrs Donoghue went to a cafe with a friend. The friend brought
her a bottle of ginger beer and an ice cream. The ginger beer came in an opaque bottle so that the
contents could not be seen. Mrs Donoghue poured half the contents of the bottle over her ice cream
and also drank some from the bottle. After eating part of the ice cream, she then poured the
remaining contents of the bottle over the ice cream and a decomposed snail emerged from
the bottle. Mrs Donoghue suffered personal injury as a result. She commenced a claim against
the manufacturer of the ginger beer.
Her claim was successful. This case established the modern law of negligence and established the
neighbour test.
Emerging from Donoghue v Stevenson, the neighbour test consisted of:
1. Reasonable foresight of harm.
2. A relationship of proximity.
Outdated, the duty of care is now subject to the Caparo test:
★ Caparo Industries Plc v Dickman (1990): “
“What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any
situation giving rise to a duty of care are that there should exist between the party owing the duty
and the party to whom it is owed a relationship characterised by the law as one of
"proximity" or "neighbourhood" and that the situation should be one in which the court
considers it fair, just and reasonable that the law should impose a duty of a given scope upon
the one party for the benefit of the other.”
, In summary, Lord Bridge created the three stage test holding that:
1. The harm needs to be reasonably foreseeable
2. The claimant must prove that there was a relationship of proximity
3. And whether it is fair, just and reasonable to impose a duty of care.
1. FORESEEABILITY OF HARM
★ Kent v Griffiths (2000) - The claimant was having an asthma attack. Her doctor attended her home
and called for an ambulance at 16.25. The ambulance, which was only 6 miles away, did not arrive
until 17.05. took unreasonable time to arrive and take the patient to hospital. The court held,
Unlike the police and the fire brigade, the ambulance service is part of the healthcare service
where a duty of care to patients normally exists.
2. RELATIONSHIP OF PROXIMITY
★ Bourhill v Young (1943) - In the case the woman heard an accident and suffered shock when
seeing blood on the road. The court held that this did not amount to a proximity of relationship.
★ However, In McLoughlin v O'Brian (1982) the court held that a mother suffering shock when
seeing injured family in hospital shows a proximity of a relationship.
● Cases where the defendant directly causes physical harm to the claimant
● There is a geographical closeness to this physical harm
● When the defendant has assumed responsibility for the claimant
3. FAIR JUST AND REASONABLE TO IMPOSE A DUTY?
★ Hill v Chief Constable of West Yorkshire - There is no duty of care on the police to
apprehend unidentified criminals and therefore they are consequently not liable in negligence
where these criminals commit further crime. Whilst it was certainly foreseeable that an individual like
the claimant may be harmed, there was no proximity between the Police and the particular
victim, she was simply one of a large category of possible victims.
BREACH OF DUTY
● After establishing a duty of care, we must assess whether there was a breach of duty.
● The breach of duty is decided by the objective test; the defendant is expected to meet the
standard of a reasonable person shown in:
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